民意代表斡旋賄賂行為之入罪化評估

全球反貪腐已然成為趨勢，我國刑法及貪污治罪條例針對公務員賄賂行為區分違背職務收賄及不違背職務收賄罪兩種，依職務上行為加以判斷構成要件是否具備，然職務上行為於我國實務中又分為多種說法，有最狹義之法定職權說及最廣義之實質影響力說，均有法官採納以之作為判決基礎，故並無一可遵循之判斷標準。又若非一般公務員，而係民意代表，雖亦為公務員，惟其執行之職務除本身依法令從事之職務外，尚有身為代議士為該地區選民喉舌之「選民服務」，其觸角細微難以認定，則刑法應如何加以解釋及現行法之處罰方式是否可涵蓋民意代表「選民服務」之部分為本文出發點。再以民意代表斡旋行為與刑法上賄賂之差異，評析斡旋行為之可罰性，藉以了解何種態樣之斡旋行為應予以處罰，輔以日本於1958年因昭和電工事件而增修之刑法第197之4條斡旋收賄罪及2000年立法擴大處罰至眾議院議員、參議院議員、地方公共團體議員或其議長，其接受請託之私經濟行為，並利用其優勢之身分、地位發揮影響力斡旋公務員職務上行為之公職者斡旋得利處罰法，最後將針對我國欲加研擬之刑法草案第134之1條影響力交易罪為探討，以及就我國現行實務上問題應如何解決，提出修正建議，以茲填補我國目前對刑法賄賂罪之處罰漏洞，希冀將人們對司法失去的信心拾回，使國家公務員具有良好之執行效果。

關鍵字

民意代表；賄賂；斡旋收賄；公職者斡旋得利處罰法；影響力交易

並列摘要

Global anti-corruption has become a trend, as our Criminal Law and Corruption Crimes Regulations distinguish between accepting bribes against one's duty and accepting bribes without violating one's duty, where their duty behaviors will be judged accordingly to see if constituted the criminal requirements. However, duty behavior can be classified as many types in practice, including, in the narrowest sense of statutory authority theory and the broadest sense of substantive influence theory, which were both readily adopted by judges as the basis for judicial sentences; thus, as a result, there is not a true standard to follow. If it is not for ordinary civil servants, but a legislative representative of the public, his or her duties, despite of the identity of being a civil servant, are not only those stipulated by law, but also serving as the mouthpiece of voters to provide so-called "voter service" in the region, making it more difficult to identify the legality of the extended services. How should the criminal law explain it and whether the punishment method of the current law can cover the part of "voter service" of these legislators are the starting points of this article to explore. Then, the difference between mediating behaviors represented by the legislators and bribery acts as stated in criminal law would be distinguished and evaluated for any punishability of these behaviors. In order to know what kind of mediating behavior should be punished, supplemented by the crime of mediating and accepting bribes in Article 197-4 of Japan's Criminal Law amended in 1958 due to the Showa Electrician Incident, and the legislation in 2000 extended the punishment to members of the House of Representatives, members of the Senate, members of local public organizations or their speakers, it is defined by their accepting of request to result in private economic gain, where the representatives knowingly use their advantageous position and power to exert influence to affect the behavior(s) of civil servant(s), Finally, this paper discussed the crime of trading in influence in Article 134-1 of the draft criminal law to be studied in Taiwan, as well as how to solve the current practical problems in our country. This paper would suggest amendments to fill the loopholes in the punishment to bribery crime in our criminal law, hoping to recover people's lost confidence in the judiciary department and make the national civil servants faithfully executing tasks in good practice.